OP(KAT) No. 84 of 2022

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS`** ## **`&`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` THURSDAY, THE 17[TH] DAY OF MARCH 2022 / 26TH PHALGUNA, 1943 ``` ``` OP(KAT) NO. 84 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT IN OA 331/2022 OF KERALA ADMINISTRATIVE ``` ## **`TRIBUNAL, THIRUVANANTHAPURAM`** ## **`PETITIONERS/APPLICANTS:`** - `1 SINDHU. R, AGED 43 YEARS W/O. BABU P.R, S.C. PROMOTER, VECHOOR PANCHAYATH, VAIKOM, KOTTAYAM - 686144, RESIDING AT KARTHIKA, KUDAVECHOOR P.O, VAIKOM, KOTTAYAM - 686144.` - `2 RUPESH KUMAR S, AGED 39 YEARS S/O. SASI, S.C. PROMOTER, ALAPPUZHA MUNICIPALITY, ALAPPUZHA AMBALAPPUZHA BLOCK, ALAPPUZHA - 688003. , RESIDING AT VALAPPILCHIRA, PALLATHURUTHY, PAZHAVEEDU P.O, ALAPPUZHA - 688009.` - `3 RENUKA MANOJ, AGED 48 YEARS W/O. MANOJKUMAR, S.C. PROMOTER, CHENNAM PALLIPPURAM PANCHAYAT BLOCK THYKKATTUSSERRY, ALAPPUZHA - 688526, RESIDING AT VENUE NIVAS, THIRUNELLOOR P.O, ALAPPUZHA - 688541.` - `4 PREETHA P, AGED 48 YEARS W/O. SUDAKARAN, S.C.PROMOTER, AROOKUTTY PANCHAYAT, BLOCK THYKKATTUSSERY, ALAPPUZHA - 688526, RESIDING AT PUTHANTHARA, NADUVATHU NAGAR P.O, ALAPPUZHA - 688526.` - `5 SHEEBAKUMARY V.S, AGED 43 YEARS W/O. PRATHAPAN K.V, S.C. PROMOTER, PANAVALLY PANCHAYATHU, BLOCK THYKKATTUSSERY, ALAPPUZHA - 688526., RESIDING AT KAREETHARA PUTHUVALNIKARTH, PANAVALLY P.O, ALAPPUZHA DISTRICT.` - `6 SUMA P.S., AGED 48 YEARS W/O. SALIM M.T, S.C.PROMOTER, VELIYANNOOR GRAMA PANCHAYATH, UZHAVOOR BLOCK PANCHAYAT, KOTTAYAM - 686633, RESIDING AT MULAYANICKAL HOUSE, PUTHUVELY P.O, KOTTAYAM - 686636.` - `7 SAIRA K.SOMAN,AGED 37 YEARS W/O. MANOJ, S.C. PROMOTER, KADAPLAMATTOM GRAMA PANCHAYAT, UZHAVOOR BLOCK PANCHAYAT., KOTTAYAM 686633, RESIDING AT KARROTTUVALYA CHIRAYIL HOUSE, ELACKAD P.O, KOTTAYAM - 686587.` - `8 JAYASREE R, AGED 40 YEARS W/O. SALIN R, S.C. PROMOTER, CHERTHALA MUNICIPALITY,` ``` OP(KAT) NO. 84 OF 2022 ``` ``` -2- ``` ``` KANJIKUZHI BLOCK, S.N. PURAM - 688682, RESIDING AT KOTHAKATTUVELI (H), CHERTHALA P.O, ALAPPUZHA - 688524. 9RETHI C.S., AGED 46 YEARS S/O. GOPI T, S.C. PROMOTER, SCHEDULED CASTE DEVELOPMENT OFFICE, KOIPURAM, ERAVIPEROOR GRAMA PANCHAYATH, PATHANAMTHITTA DISTRICT, RESIDING AT CHURALLOOR HOUSE, VALLAMKULAM EAST P.O, THIRUVALLA, PATHANAMTHITTA - 689541. ``` ``` BY ADVS. KALEESWARAM RAJ VARUN C.VIJAY THULASI K. RAJ ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF SCHEDULED CASTE DEVELOPMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695001.` - `2 THE SECRETARY TO GOVERNMENT. LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695001.` - `3 DIRECTOR OF SCHEDULED CASTE DEVELOPMENT DIRECTORATE OF SCHEDULED CASTE DEVELOPMENT OFFICE, VIKAS BHAVAN, THIRUVANANTHAPURAM - 695033, KERALA.` - `4 DISTRICT SCHEDULED CASTE DEVELOPMENT OFFICER DISTRICT SCHEDULED CASTE DEVELOPMENT OFFICE, 1ST FLOOR, MINI CIVIL STATION, ALAPPUZHA - 688013, KERALA.` - `5 DISTRICT SCHEDULED CASTE DEVELOPMENT OFFICER DISTRICT SCHEDULED CASTE DEVELOPMENT OFFICE, COLLECTORATE, KOTTAYAM - 686002, KERALA.` - `6 DISTRICT SCHEDULED CASTE DEVELOPMENT OFFICER DISTRICT SCHEDULED CASTE DEVELOPMENT OFFICE, ADOOR, PATHANAMTHITTA - 689645, KERALA.` ``` SRI.B.UNNIKRISHNA KAIMAL, SR.GOVT.PLEADER ``` ``` THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 17.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(KAT) NO. 84 OF 2022 ``` ``` -3- ``` # **ALEXANDER THOMAS & VIJU ABRAHAM, JJ. ========================= O.P.(K.A.T.) No. 84 of 2022** (Arising out of impugned order dated 08.03.2022 in O.A. No.331 of 2022, of the KAT, Tvm) **========================= Dated this the 17 th day of March, 2022** ## **JUDGMENT** Ext.P2 interim order dated 08.03.2022, rendered by the Kerala Administrative Tribunal, Thiruvananthapuram Bench, in the instant O.A.No.331/2022, is under challenge in the instant O.P. filed under Article 227 of the Constitution of India. The petitioners in the O.P are the applicants in the above said O.A., and the respondents in the O.P are the respondents in the O.A. The prayers sought for in the instant O.P are as follows: “i) To allow this O.P.(KAT) and to set aside Exhibit P2 order dated 08.03.2022 in O.A.331/2022 to the extent to which it does not stay the operation and implementation of Annexure A5 notification and to grant the interim relief as sought for in O.A. 331/2022; ii) And to issue such other order or direction as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.” 2. Heard Sri. Kaleeswaram Raj, learned Advocate, instructed and ably ``` OP(KAT) NO. 84 OF 2022 ``` ``` -4- ``` assisted by Sri. Varun C.Vijay, learned counsel appearing for the petitioners in the O.P/applicants in the O.A, and Sri. B.Unnikrishna Kaimal, learned Senior Government Pleader, appearing for the respondents in the O.P/respondents in the O.A. 3. Prayers in the instant Ext.P1 O.A.No.331/2022, before the Kerala Administrative Tribunal, Thiruvananthapuram Bench, are as follows: “i. To set aside Annexure A5 notification as unjust, illegal and arbitrary. ii. In the alternative, declare that the applicants are also entitled to be considered in the selection process pursuant to Annexure A5 notification and direct the respondents to consider the applicants as well pursuant to Annexure A5 notification; iii. To declare that persons who are above 40 years are also eligible to apply for the post of SC promoters and Annexure A5 is struck down; iv. To direct the respondents to pass orders for issuance of a fresh notification without excluding persons like the applicants and without imposing any age bar; v. To grant such other reliefs as this Hon’ble Tribunal may deem fit and proper in the circumstance of the case.” 4. The Tribunal, after hearing both sides has rendered the impugned Ext.P2 interim order dated 08.03.2022 in the instant O.A, wherein, it has been ordered that, though the applicants are age barred going by the terms and conditions of the impugned Annexure A5 selection notification, issued by the Director of Scheduled Caste Development, Government of Kerala, ## **`OP(KAT) NO. 84 OF 2022`** ``` -5- ``` the 3[rd] respondent, for selection to the post of Scheduled Caste Promoter, they may be permitted to submit their applications in those selection notification, and that though the last date of submission for the application is over, the application if filed shall be accepted by the respondents, if it is otherwise in order. The implication of the said interim order is that, even if the applicants are otherwise age barred going by the selection notification, their applications shall be accepted for the time being, if they have already the other qualifications and eligibility conditions. It appears from the submissions of both sides that the interim order has been granted by the Tribunal at Ext.P2 on the basis of the directions and orders passed by the Division Bench of this Court in Annexure A3 judgment dated 31.08.2017, in O.P.(KAT)No.125/2017and connected cases, wherein, the Division Bench has inter alia granted the directions, which reads as follows: “Only one thing remains to be considered, i.e., even admittedly, 10% of the total vacancies of SC Promoters in the District are to be filled up by considering the persons, who are working as ‘Social Workers’ as dealt with under Clause II of Annexure A17. In that case, the maximum age limit is ‘50 years’; whereas it is 18-40 years in other cases, as mentioned in Clause I(ii) of Annexure A17. It is conceded across the Bar that the petitioners applications in response to Annexure A17 will be considered, if they satisfy the requirements (educational qualification and age factor) for fresh engagement. But is so far as the petitioners who were continuing in service for more that 8 years and are stated as having crossed the age of 40 years, it is to be considered, whether they could be identified by placing them enbloc ``` OP(KAT) NO. 84 OF 2022 ``` under this segment, i.e., 10% of the total number of vacancies available in the District, where the maximum age is ‘50 years’. We find it appropriate to cause the above modification to the said extent, i.e., in respect of this group, preference shall be given to the persons having the age group above 40 years and upto 50 years and that only if no qualified person satisfying the above requirement is available under this Group, will it go to the other persons of lesser age, i.e., less than 40 years. Clause I & II of Annexure A17 will stand modified to the said extent. Subject to the above, we decline interference and the Original Petitions are dismissed.” 5. It is also brought to our notice that Annexure A3 judgment of the Division Bench of this Court has been confirmed by the Apex Court as per Annexure A4 judgment dated 28.10.2021, by dismissing the SLP’s preferred against Annexure A3 judgment. 6. It appears that the case of the applicants is to the effect that as per the norms prescribed by the Government, the age limit for the category concerned is between 18-40 years. So also, the case of the applicants that for appointment to the post of Scheduled Caste Promoters from the feeder source of social workers, the upper age limit is 50 years. One of the main complaints voiced by the applicants in the present O.A. proceedings is to the effect that in Annexure A5 selection notification, the 3[rd] respondent Direct0r of the Department concerned, who is subordinate to the Government, has violated the Government norms and has stipulated that the age limit shall be within 18-30 years instead of 18-40 years as ``` OP(KAT) NO. 84 OF 2022 ``` ``` -7- ``` prescribed by the Government. According to the applicants, many of them are in their mid and late 30’s and few of them have crossed 40’s. Ext.P2 is only an interim order, whereby, the rights and interest of the applicants have been duly protected by permitting them to submit the application despite the age bar and despite the expiry of the last date of submitting the applications. The applicants would state that, in Ext.P3 interim order granted earlier on 25.02.2022, to another set of applicants from a different district, the same notification has been stayed by the Tribunal. In the instant case, at Ext.P2 also, the Tribunal should have adopted the same course by granting stay of the selection proceedings itself as ordered in Ext.P3. 7. Sri. B.Unnikrishna Kaimal, learned Senior Government Pleader appearing for the respondents would point out that the main OA matters, in respect of Exts.P3 is being heard by the Tribunal, the said OA’s have been adjourned when the matter came up before the Tribunal, which was mentioned on behalf of the present applicants and that the present O.P(KAT) is being moved before this Court and accordingly, the Tribunal had adjourned the matter. Further, learned Senior Government Pleader also apprises that, even the aspect of maintainability of this OA is also being considered by the Tribunal in as much as, according to the respondents, the ``` OP(KAT) NO. 84 OF 2022 ``` present selection post may not come within the jurisdictional competency of the Tribunal and the provisions contained under the Administrative Tribunal Act, 1985, and the notification issued thereunder and also on the basis of the dictum laid down by the Apex Court in _**State of Karnataka and others vs. Ameerbi and Others [(2007) 11 SCC 681]**_ . Per contra, the learned counsel appearing for the petitioners would point out that the very same issue was canvased by the Tribunal in the previous round of litigations and it has been held by the Tribunal as per Annexure A2 order dated 23.05.2017, in O.A.No.879/2015, that the plea of this nature is maintainable before the Tribunal. 8. After hearing both sides, we are of the view that there is no necessity for us to interfere in this matter since Ext.P2 is essentially an interim order which is in a way favourable to the applicants. Sri. Kaleeswaram Raj, learned counsel appearing for the petitioners in the present OP would point out that the petitioners would be presently satisfied if the Tribunal hears the main OA matters both in relation to Exts.P2 and P3 together, if the petitioners have a case that both the matters in relation to Exts.P2 and P3 should be heard together, it is for them to make pleas in that regard before the Tribunal. We say so because from Ext.P2, it is seen that the present OA’s are filed before the Principle Bench, ``` OP(KAT) NO. 84 OF 2022 ``` ``` -9- ``` Thiruvananthapuram, whereas, the other OA matters at Ext.P3 have been filed before the Additional Bench of the Tribunal at Ernakulam. Since the matters are pending before the Tribunal, no other orders or directions are called for. With these observations and directions, the above O.P will stand disposed of. ``` Sd/- ALEXANDER THOMAS JUDGE ``` ``` Sd/- VIJU ABRAHAM JUDGE ``` uu 19.03.2022 ``` OP(KAT) NO. 84 OF 2022 ``` ``` -10- ``` ## **`APPENDIX OF OP(KAT) 84/2022`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE MEMORANDUM OF O.A NO. FILED BY THE PETITIONERS ALONG WITH THE ANNEXURES. ``` ``` ANNEXURES A1TRUE COPY OF THE G.O(P) NO. 86/10 DATED 28.07.2010. ANNEXURE A2TRUE COPY OF THE ORDER OF THIS HON'BLE TRIBUNAL IN OA 879/2015 AND CONNECTED MATTERS DATED 23.05.2017. ANNEXURE A3TRUE COPY OF THE COMMON JUDGMENT IN THESE OP(KAT), DATED 31.08.2017. ANNEXURE A4TRUE COPY OF THE COMMON JUDGMENT OF THE HON'BLE SUPREME COURT IN SLP NOS. 4057- 4064/2018 AND CONNECTED CASES DATED 28.10.2021. ANNEXURE A5TRUE COPY OF THE NOTIFICATION ISSUED BY THE SCHEDULED CASTES DEVELOPMENT DIRECTORATE. Exhibit P2TRUE COPY OF THE ORDER DATED 08.03.2022 IN OA 331/2022 PASSED BY THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. Exhibit P3TRUE COPY OF THE INTERIM ORDER DATED 25.02.2022 IN OA (EKM) NO. 320/2022 PASSED BY THE HON'BLE TRIBUNAL. ```